Page:Federal Reporter, 1st Series, Volume 8.djvu/673

WOOLEIDGE V. m'kENNA. 659 �tion; while the latter says that if filed within 20 days, in the cases there provided for, "such filing and appearance shall be taken to sat- isfy the said bond in that behalf." This bond seems an important matter, and this statute, and all that have preceded it, instead of inflicting the penalty of forfeitirig the jurisdiction, have provided another and a special remedy against neglect, which is a penal bond to eecure to the adversary party his damages for it. Whether the court does or does not take jurisdiction after a failure to file the rec- ord, this bond proteets the party against any injury he bas received. Morrissey v. Drake, 10 J. E. 27; Horion v. Miller, 38 Pa. St. 270. It may be a condition precedent in the construction of the contract contained in the bond, which may not be excused, even if it becomes impossible by the act of God, much less by the act of the party. 3 Comyn's Dig. (5th Ed. A. D. 1825, by Day,) tit. "Condition, D 1," p. 96; Id. "L, 12," p. 121; 1 Comyn's Dig. tit. "Action on the Case, G," p. 330. But it does not follow that it is a condition precedent to the jwriadiction of the cowrt. The cases consulted frequently point to the remedy by personal action against the defaulting officer or party as a sufficient protection, without holding the statute to be man- datory; and here we have provided a special security upon that per- sonal action which would stUl more seem indicative of an intention that the statute shall be taken to be directory. It was so held on a construction of this act of congress by Mr. Circuit Judge McCrary. Kidder v. Feattem, 2 Fed. Eep. 616; S. C. 1 McC. 323. �But aside from this consideration this statute falls within the cases declaring the rules by which a statute shall be held to be directory. In Brewer v. BUmgher, 14 Pet. 178, 198, it is said that it is undoubt- edly the duty of the court to restrain the operation of a statute within narrower limits than its words import if the court is satisfied that the literal meaning of its language would extend to cases never de- signed to be embraeed in it. And in Oates v. Nat. Bank, 100 U. S.. 239, 24.4, Mr. Justice Harlan says that "a thing which is within the letter of the statute is not within the statute unless it be within the meaning of the makers." �In Whitney v. Emmett, Bald. 303, 316, it is said: �"Laws are construed strictly to save a right or avoid a penalty. They are construed liberally to give a remedy or to carry into eliect an object declared in the law. It is judicial legislation to confound the parts of a law which are merely directory as to acts to be donc with those which prescribe acts as con- ditions precedent to the vesting of a right." ��� �